SMITH v. THE STATE, 2011 Ga. App. LEXIS 590, July 1, 2011, the indictment against Smith alleged committed child molestation by “unlawfully perform[ing] an immoral and indecent act upon the person of [A. S.], a child under the age of sixteen (16) years, by placing his penis in her vagina with intent to arouse and satisfy the sexual desires of said child and said accused. . . .” The trial court gave the jury the following instruction as to the child molestation offense: “[a] person commits the offense of child molestation when that person does an immoral and indecent act to a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of the person and the child.” During deliberations, the jury sent a note to the trial court asking, “Can a sexual conversation alone constitute an indecent act?” and “What is the State’s standard definition of immoral and indecent act?” Following discussion with counsel, the trial court instructed the jurors: “You’ll have to refer to the charge as a whole and the indictment and the evidence.

The jury charge and the response to the question led the jury to believe that they could convict him of child molestation based on a conversation alone, without concluding that he placed his penis in her vagina as alleged in the indictment.  As such, the court should have instructed the jury: no, sexual conversation alone constitute an indecent act because that is not what the State alleged.

It is so important to make sure the indictment is perfect in form and substance.  The State must prove all the elements beyond a reasonable doubt.  The judge, for his role, must properly instruct the jury to narrowly focus their deliberations on the elements of the indictment.